Save Gitmo!

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

As odious a symbol as it has been to our overseas friends and foes, as evanescent as its legal successes have been since September 11, 2001, it would be a big mistake now to suddenly shuffle the hundreds of suspected terrorists to other prisons here, there and everywhere. It would be the functional equivalent of taking your marbles and going home because the rules of the game aren't what you want them to be - and that's not how things are done well in American law.

Closing the base isn't going to close the debate over the fate of the hundreds of detainees who live there. It's not going to solve the legal mess the White House and the Pentagon have made of the tribunal proceedings. It's not going to make us look better in the court of public opinion. The men are not going to evaporate again into thin air like so many "extraordinary rendition" targets before them. The damage already has been done. Shutting the gates at the euphemistically-named "Camp Justice" and slinking away will only make a bad situation worse.

No, the only way for the White House and the Pentagon to properly end this heinous chapter in our history is to finally prosecute the terror suspects, properly and with self-confidence that the convictions and sentences of the worst among them will be upheld upon appeal by our civilian courts.

And that means having the courage to acknowledge publicly that many of the men have been held down in Cuba on flimsy evidence stemming from dubious sources. It means backing away from the post-9/11 push for more executive branch power.

And it means listening to the moderates within the other two branches of government who have been saying for years - that there are constitutional ways to get the job done.

There is little evidence, however, that these solutions are on the horizon. In fact, you could better argue that things are heading in the precise opposite direction.

First, the Supreme Court last month (for the fourth time in four years) ruled against the White House's jury-rigged procedures for the detainees. The Justice authorized the detainees to appeal their status to the federal civilian courts, a green flag that instantly allowed hundreds of such pending cases to continue to proceed. The ruling - no surprise to most legal observers - virtually guarantees there will be no finality over the fate of the men for many more years.

Then, just a few days later, we learned that for the first time a federal appeals court had ruled that the U.S. military had incorrectly classified a Chinese Muslim as an "enemy combatant." Surely this is an ominous sign to Administration officials, who now understand just how rigorous will be the review processes by which "combatant" designations will be judged.

It is precisely because these reviews are reasonably rigorous that Administration officials have fought like wildcats for years to avoid them.

And it was precisely because of the ruling - and what it portends in ongoing cases - that the Administration subsequently announced, somewhat sheepishly, that it intends to "re-write" summaries of the classified evidence against many of the detainees - no doubt to buttress the cases against the men after the fact.

It's far too late for such tricks, of course; you can be sure that the reviewing judges in Washington or elsewhere will see both a "before" and an "after" version of the evidence and be in a position to ask pointed questions about how it came to pass that one begat the other.

This is no way to run a legal war on terror.

So now, with the legal momentum clearly against it, we learn that the Administration may be chewing again on the idea of simply closing down the detainee camp.

It's hard to see how such a move would more quickly generate the convictions and sentences of terror masterminds like Khalid Sheikh Mohammed or Ramzi Binalshibh, dangerous men who clearly deserve to be punished for their leadership roles within al Qaeda. Nor is it easy to see how closing down Gitmo will get the federal courts, and the Supreme Court, off the Pentagon's back when it comes to the treatment of the men. Just as surely as they have been designated as "dangerous" by the military, they have been designated as "petitioners" by the courts.

We should keep the men at Gitmo and clean up the mess we have created there. We shouldn't push that mess to other places in the hopes that it will create some sort of cognitive dissonance about the men. The worst offenders should be tried under rules that give them broad rights; they'll be convicted anyway. The least culpable should be released back to their native countries, or anywhere else. And for those in-between, the harder cases, well, a civilian court review wouldn't be the worst thing in the world. It would certainly send a message that we treat our enemies better than they treat us (and certainly as we would expect to be treated).

Today, "Camp Justice" at Guantanamo Bay is a symbol of American failure in the legal war on terror. It shouldn't remain fixed that way through its closure. Instead, it should be kept open until we get it right. And the path toward that happy day runs straight through the White House and the Pentagon, just as it has for nearly seven years.